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How Did Abortion Become Legal?

Women in the United States haven't always had the right to an abortion. Before 1973, individual states were allowed to decide whether abortion would be legal within their borders.

So how did abortion become legal? In a landmark decision, the U.S. Supreme Court decided that the right to an abortion was part of a woman's right to privacy.

Roe v. Wade

Federal law has protected a woman's right to choose an abortion since the U.S. Supreme Court's Roe v. Wade decision in 1973.

Norma McCorvey, the plaintiff, was an unmarried pregnant Texas woman who sought an abortion, but was denied one under Texas law. She filed a federal lawsuit under the pseudonym "Jane Roe" to have the Texas law declared unconstitutional. Roe argued that a law prohibiting her from obtaining an abortion violated her constitutional right to privacy.

The U.S. Supreme Court, in 7-2 vote, agreed with Roe that Texas's law criminalizing abortion violated her right to privacy. But the Court held that states do have an interest in ensuring the safety and well-being of pregnant women, as well as the potential of human life.

Acknowledging that the rights of pregnant women may conflict with the rights of the state to protect potential human life, the Court defined the rights of each party by dividing a pregnancy into three 12-week trimesters:

  • During a pregnant woman's first trimester, the Court held, a state cannot regulate abortion beyond requiring that the procedure be performed by a licensed doctor in medically safe conditions.
  • During the second trimester, the Court held, a state may regulate abortion if the regulations are reasonably related to the health of the pregnant woman.
  • During the third trimester of pregnancy, the state's interest in protecting the potential human life outweighs the woman's right to privacy, and the state may prohibit abortions unless abortion is necessary to save the life or health of the mother.

The Court further held that a fetus is not a person protected by the constitution. The decision in Roe v. Wade did not eliminate the controversy surrounding abortion, however. The laws surrounding abortion, ranging from methods, to funding, to parental consent and more, continue to be debated and shaped to this day. The following are a few examples.

Planned Parenthood v. Casey

In 1992, the Supreme Court reaffirmed its position that abortion should be legal in the case of Planned Parenthood v. Casey.

The case challenged a series of Pennsylvania regulations -- ranging from a mandatory waiting period for abortion to a spousal consent provision -- which limited a woman's access to abortion.

Though the Supreme Court upheld most of the Pennsylvania laws, the Court struck down the spousal consent requirement as an "undue burden" on married women seeking abortions.

Gonzales v. Carhart

Most states no longer try to ban abortions. Instead, legislatures tend to limit the time period during which a woman can have an abortion, as well as the procedures used to perform abortions. One common restriction is a limitation on a procedure known as a "partial birth" or late term abortion.

In 2003, Congress passed the Partial-Birth Abortion Ban Act, which prohibited the intact dilation and extraction abortion procedure. The procedure was typically used during the second trimester, sometimes after the point of viability.

In 2007, the Supreme Court's ruling in Gonzales v. Carhart upheld the ban on partial birth abortion as constitutional, concluding that it did not impose an undue burden on a woman's right to choose an abortion.

Whole Woman’s Health v. Hellerstedt

In 2016, the Supreme Court's ruling in Whole Woman’s Health v. Hellerstedt struck down a restrictive Texas law that required all doctors who perform abortions to have admitting privileges at a hospital within 30 miles of their clinic. The law would have also required clinics to meet surgical-center operating standards. 

The Supreme Court concluded that the law was unconstitutional and would have resulted in an undue burden on women seeking access to abortions. The ruling will likely affect states that have similar laws either on the books or in the works, including Alabama, Arkansas, and Louisiana.

Seeking Legal Advice on Abortion Laws 

If you have questions about the abortion laws in your state, you may wish to speak with a qualified healthcare lawyer today. A skilled attorney will be able to explain the laws of your state and answer questions about the legality of abortion. 

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